36 Because Resolution B may not validly be put to a meeting of NRMA, it is necessary to deal with NRMA's remaining submissions only in so far as they relate to the question whether a meeting must be called to consider Resolution A.
37 Mr Einfeld's submissions in this regard found upon the established principle that the right given to members of a company to requisition a general meeting, such as is afforded by CA s.249D(1), is a right which must be exercised for the purpose for which it is given. If a member exercises the right to requisition a meeting for a purpose other than the passing of the resolution contained in the requisition then the requisition is invalid: see Ngurli Ltd, Carinya Ltd, Fitzroy Ltd & Myall Ltd v McCann (1953) 90 CLR 425, at 438; Humes Ltd v Unity APA Ltd (No 1) [1987] VR 467, at 470-471.
38 Mr Einfeld says that the Defendants have exercised their right under CA s.249D(1) to requisition a meeting to consider Resolution A for a number of purposes which render the requisition invalid. It is important to note at the outset, however, that Mr Einfeld concedes that the Defendants seek to have Resolution A considered and, if thought fit, passed a general meeting of NRMA. Indeed, such scant evidence as there is suggests that the Defendants intend to keep exercising the right to requisition meetings until such resolutions are passed as will give them and other members of like mind control of the Board. Mr Einfeld concedes that the recent history of NRMA meetings and the voting thereat cannot justify a submission that there is no prospect of Resolution A being passed.
39 Mr Einfeld submits, however, that in addition to the purpose of having Resolution A passed, the Defendants have other purposes in requisitioning a meeting which are improper. The improper purposes, he says, invalidate the exercise of the requisition right. Mr Einfeld formulates his proposition thus: if a member has more than one purpose in requisitioning a general meeting, one purpose being to have the meeting consider and, if thought fit, pass the resolution the subject of the requisition, and another purpose being, for example, to harass the company or to cause trouble and expense to its directors, then the existence of the second purpose vitiates the requisition entirely. Mr Einfeld acknowledges that this proposition is contrary to authority but he says that that authority is wrongly decided.
40 Before discussing this proposition as a matter of principle, I should deal with the submissions as to the particular alleged purposes of the Defendants said to be improper.
41 First, Mr Einfeld says that Resolution A must be seen together with Resolution B as "part of a package", both resolutions representing an attempt by the Defendants to fetter the power of the Board to fill casual vacancies which is conferred by Article 87 of the NRMA Constitution
42 I am unable to accept this submission. Resolutions A and B are not linked or otherwise made interdependent. If only Resolution A goes to a meeting and is passed, what will have happened is that the Board will validly have exercised its right under Article 87 to fill casual vacancies by appointing certain directors and the Defendants will subsequently have validly and successfully exercised their rights under s.249D(1) and s.203D(1) to procure a general meeting whereby the will of the majority of members as to the continuance in office of those directors has been expressed. Both the Board and the requisitionists will have availed themselves of co-existing legal rights, neither of which is paramount to the other. The Board has no right under Article 87 or under the Corporations Act to entrench in office the directors which it appoints to fill casual vacancies, as CA s.203D(1) makes plain.
43 Second, Mr Einfeld says that the requisitions for a meeting to consider Resolutions A and B should be seen as part of a campaign which is being waged for the benefit of one group of directors in order to enable that group to gain control of the Board, regardless of the cost to NRMA, financial or otherwise.
44 Let it be assumed that such is, indeed, the purpose of the requisitionists. Even so, that purpose is not an improper one. The right to requisition a meeting under CA s.249D(1) for the purpose of removing directors under s.203D exists so that something akin to the democratic process is allowed to work in the governance of public companies.
45 Just as in the body politic, so also in the body corporate, factions contend for power. The faction in office usually regards as abhorrent the very possibility that the opposing faction may itself achieve office, firmly believing that the opposing faction does not have at heart the best interests of the body as a whole. The opposing faction entertains the same charitable view of the motives held by the faction in power. In the body politic the will of the majority is permitted to decide the contest as often as elections may lawfully be held. In the case of a public company, the will of the majority is permitted to decide the contest as often as members can muster sufficient numbers to invoke the right to requisition a meeting under s.249D(1) for the purpose of a resolution under s.203D(1).
46 It so happens that convening a general meeting of NRMA is an extremely expensive process because the company has some two million members. But that circumstance, peculiar to NRMA, does not extinguish or modify the right of its members, in common with members of all public companies, to requisition a meeting as often as they can obtain the requisite numbers under s.249D(1) so long as it can be seen that the purpose in requisitioning the meeting is a proper one.
47 Mr Einfeld says that the Defendants do not have a proper purpose because they have evinced an intention to requisition meetings as often as they can, regardless of the heavy costs of convening them, "in order to advance a private agenda" . He points to what he says is intemperate, even defamatory, language in the draft Statement in support of Resolutions A and B provided by the Defendants to NRMA for circulation to members pursuant to CA s.249P. He says also that the Defendants must have known that Resolution B was invalid.
48 NRMA bears the onus of proving that the Defendants actually intend to inflict on it unnecessary financial expense as a tactic in their battle for control of the Board. I cannot find that it has discharged that onus, for the following reasons.
49 The Defendants' requisitions are in response to a particular action of the Board, i.e. the filling of certain casual vacancies. The draft s.249P Statement and many other public statements of the Defendants which have been adduced in evidence leave me in no doubt that the Defendants believe strongly that the directors presently in the majority on the Board of NRMA, the so-called "Members First" faction, have acted in a manner that is highly detrimental to the interests of the company as a whole and that the appointment of the directors named in Resolution A to fill casual vacancies was simply a manoeuvre by that faction to entrench themselves in office. Whether the Defendants and those other members who support them are correct in that view is not for this Court to judge in the present application but there is nothing in the evidence to suggest that the Defendants and their supporters do not genuinely hold that view.
50 In arriving at these conclusions, I have not overlooked Mr Einfeld's submission that the Defendants must have known that Resolution B was invalid. I am unable to accept that submission. There is no evidence that the Defendants are lawyers or that they received legal advice in the drafting of Resolution B. While the Defendants may well have picked up a few legal point in their many battles with NRMA, I would say, without intending any disparagement, that they would probably be the first to describe themselves as no more than "bush lawyers". I am unable to conclude that the Defendants must have known that Resolution B was invalid.
51 In my opinion, therefore, nothing has been shown by NRMA which would lead to the conclusion that in requisitioning a meeting of members the Defendants had any purpose other than to procure the passing of Resolutions A and B. It follows that the Defendants' exercise of their right to requisition such a meeting under CA s.249D(1) was valid.
52 For the sake of completeness, I should deal with MrEinfeld's submission that if a requisitionist has more than one purpose in exercising the requisition power under s.249D(1), one proper and the other improper, then the power is invalidly exercised.
53 In my opinion, this submission confuses the purpose for which a requisition is made with the motive of the requisitionist in making it. If the purpose for which the requisition is made is truly to have a meeting of members convened in order to consider and, if thought fit, to pass the resolution, then it does not matter that the requisitionist is motivated to pursue that purpose by ill-will or self interest.
54 The rationale underlying the law in this regard is the same as that which applies in the law relating to abuse of process. In Williams v Spautz (1992) 174 CLR 509, the majority said (at 526) that an abuse of process occurs when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or for some collateral advantage beyond what the law offers.
55 However, if a litigant institutes proceedings to invoke a remedy for which the law provides in such proceedings, then there will not be an abuse of process "even if the [plaintiff] is spurred on by intense personal animosity, even malice, against the defendant: it is not the law that only a plaintiff who feels goodwill towards a defendant is entitled to sue" : Swansson v R.A. Pratt Properties Pty Ltd (2002) 42 ACSR 313, at 321; Dowling v Colonial Mutual Life Assurance Society (1915) 20 CLR 509, at 521-522; IOC Australia Pty Ltd v Mobil Oil Australia Ltd (1975) 11 ALR 417, at 426-427.
56 In the present case, it is quite apparent that the competing factions within NRMA regard each other with intense hostility. Each faction has resorted to legal proceedings and to the mechanisms of corporate regulation and governance contained in the Corporations Act in order to vindicate perceived rights or to redress perceived grievances. If, as in this case, the Defendants resort to the rights under CA s.249D to requisition a meeting for the purpose of passing a resolution valid in terms, then their motivation in doing so is irrelevant to the question whether the requisition power is properly exercised.
57 By way of final observation on this aspect of the matter, I strongly endorse what was said by Windeyer J in NRMA v Snodgrass (2002) 42 ACSR 371, at 376:
"It seems to me extraordinary that in a company limited by guarantee with about 2 million members a general meeting can be summoned by requisition of 100 members, namely one in every 20,000 or 0.005%. There is provision under s 249D (1A) for prescription by regulation of a different number of members for the purposes of the application of s 249D (1) (b) to a particular company. The evidence shows that a regulation proposed for a general class of companies was disallowed in the senate some years ago. Despite that it seems to me that the time has well and truly arrived for a regulation to be made under this section in respect of NRMA. Nevertheless until it is the rights of members must be decided on the basis of their present rights."
Conclusion